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The Eminent Domain Revolt: Changing Perspectives in a New Constitutional Epoch

This book, which originally appeared as an essay on SSRN, is now available (New York: Algora Publishing, 2006).

In response to the Kelo v. New London eminent domain decision, public opinion has initiated the first massive reorientation of Constitutional policy since the Great Depression. We are now well into the fourth Constitutional epoch. The struggle for Constitutional supremacy - fought out in shadow of West Coast Hotel v. Parrish - has led to the formulation of supreme doctrine of the new epoch: every law maintains an important fact. The terms come from previous Constitutional epochs, and the history of the new epoch is being written according to the way in which these terms are construed.

The scrutiny regime began with West Coast Hotel v. Parrish, when the Court relegated an absolute and uncontrollable liberty to a Constitutional interest enjoying only minimum scrutiny. 300 US 379, 391 (1937). This unexamined concept was the only justification given for sustaining a minimum wage law.

However, the Court in Lawrence v. Texas, decided that laws once thought necessary and proper in fact serve only to oppress. The decision was an example of liberty in its manifold possibilities. 539 US 558, 579, 578 (2003). The Court removed liberty from the scrutiny regime, and in doing so overruled the rationale of West Coast Hotel. It abandoned the scrutiny regime in its analysis. Courts and Congress have also joined in the abandonment of the scrutiny regime, a development most clearly seen in courts upholding RLUIPA (upheld with respect to the Federal Government in the O Centro decision and with respect to the states in Guru Nanak v. Sutter - can the overruling of Boerne be far behind?). We are now living in a new Constitutional regime. What characterizes that regime?

In addition, public opinion has affirmed the new regime by its response to the Kelo decision. It decided that facts [premising] a constitutional resolution of social controversy had proven to be untrue, and history's demonstration of their untruth not only justified but required the new choice of constitutional principle. Planned Parenthood v. Casey, 505 US 833, 862 (1992). Public opinion has decided that housing, which is the fact at issue in Kelo, should be, for Constitutional purposes, like free speech and freedom of worship - one of those fundamental rights which have to be withdrawn...from the vicissitudes of political controversy. West Virginia State Board of Education v. Barnette, 319 US 624, 638 (1943). Public opinion is formulating a new Constitutional principle as the basis for that decision.

The scholarly community is torn between supporters of the scrutiny regime - who see nothing in the opposition to eminent domain except opposition to health and welfare regulation - and opponents of the scrutiny regime, whose Constitutional doctrines are undeveloped. The result is that scholars have simply ignored what is actually going on in the debate. The purpose of this essay is to correct that ignorance.

This essay examines the parameters of that debate:

1. new levels of scrutiny in order to incorporate new facts; 2. a new bill of rights involving new facts; and 3. a facts of the individual analysis, a new approach to facts.

The Kelo decision - a 5-4 decision which was the first U.S. Supreme Court decision opposed by a consensus - is a product of the minimum scrutiny regime. Long criticized, the regime, public opinion has decided, must be so seriously changed as to be denatured, or overthrown altogether. One commentator has recently summarized the first three Constitutional epochs:

At one point in its history American constitutional jurisprudence presumed that the distinction between 'judicial' and 'political' questions was intelligible; at another point it presumed that the boundary between public power and private rights could coherently be traced; at another it presumed that there was a clear difference between the sort of legislation that required heightened and the sort that only required minimal scrutiny. Those presumptions did not come from the Constitution or any other legal source. They came from a set of shared social and political attitudes that shaped conceptions of the role of the judiciary in American constitutionalism. As those attitudes changed, presumptions changed with them. A robust constitutional principle of departmental discretion gave way to judicial boundary tracing which gave way to judicially fashioned levels of scrutiny. None of those regimes of constitutional interpretation should be regarded as cast in stone. None should be regarded as intrinsically superior to the others. The scrutiny regime has been with us for approximately 70 years. It may have exhausted itself as a helpful technique of constitutional interpretation. If we understand its historical origins, perhaps we can understand its contingent status.

G. Edward White, Historicizing Judicial Scrutiny.

This essay is about the fourth Constitutional epoch which has recently begun, the epoch of the New Bill of Rights and the facts of the individual analysis. It is designed to give you detailed and working knowledge of the new state. The essay provides a series of discrete, interlocking mechanisms which take us out of the current minimum scrutiny regime into the new facts of the individual analysis which is rapidly coming to dominate law, not only in the United States, but also, throughout the world. The essay presents

1. the exact wording of new levels of Constitutional scrutiny, and 2. the trigger test for elevation of facts above minimum scrutiny.

Finally, the essay provides black letter language for five facts at the highest level of scrutiny:

1. No individual shall be involuntarily deprived of housing; 2. No individual shall be involuntarily deprived of liberty; 3. No individual shall be involuntarily deprived of medical care; 4. No individual shall be involuntary deprived of maintenance; 5. No individual shall be involuntarily deprived of education.